Teller, the silent half of the famed Penn and Teller duo, has filed a …

Teller, the silent half of the well-known magic duo Penn and Teller, has sued a rival magician for copying one of his most famous illusions. The case promises to test the boundaries of copyright law as it applies to magic tricks.

In "Shadows," a spotlight casts a shadow of a rose onto a white screen. When Teller "cuts" the shadow on the screen with a knife, the corresponding parts of the flower fall to the floor.

A Dutch magician with the stage name Gerard Bakardy (real name: Gerard Dogge) saw Teller perform the trick in Las Vegas and developed his own version. Bakardy sells a kit—including a fake rose, instructions, and a DVD—for about $3,000. To promote the kits, he posted a video of his performance to YouTube and prepared a magazine ad. (With the video down, the link points to screenshots from the video filed by Teller in his lawsuit.)

Teller had Bakardy's video removed with a DMCA takedown notice, then called Bakardy to demand that the magician stop using his routine. Teller offered to buy Bakardy out, but they were unable to agree on a price. So Teller sued Bakardy last week in a Nevada federal court.

Shadows

Can you copyright a trick?

A fundamental principle of copyright law is that copyright covers the expression of ideas but not the ideas themselves. This puts the essential elements of the trick—the concept of rose petals falling when the shadow is "cut" and the technical details of how this effect is accomplished—outside the bounds of copyright protection.

So what's left? According to New York Law School professor James Grimmelmann, copyright law protects pantomimes and choreographic works. So Teller may be able to claim the "Shadows" routine is protected under these categories. Teller describes "Shadows" as a "dramatic work."

Teller's case may hinge on exactly how similar Bakardy's routine is to Teller's. in a 1983 copyright registration, Teller describes the sequence of actions that make up his performance. Ars Technica was not able to find a copy of Bakardy's video, so we weren't able to determine how similar Bakardy's routine is to the one described in Teller's copyright registration.

Still, Grimmelmann argues that "Teller has an uphill fight on his hands." In a 2007 paper that became an instant classic, Jacob Loshin showed how magic thrives without significant protection from either copyright or patent law. Instead of relying on formal legal mechanisms, magicians derive benefit from their inventions through informal social norms that encourage magicians to give due credit to the original inventor of a particular trick.

108 Reader Comments

A fundamental principle of copyright law is that copyright covers the expression of ideas but not the ideas themselves. This puts the essential elements of the trick—the concept of rose petals falling when the shadow is "cut" and the technical details of how this effect is accomplished—outside the bounds of copyright protection.

I don't understand. Wouldn't the technical details of how the effect is accomplished be precisely the "expression of ideas but not the ideas themselves" that would be protected by copyright?

Not much is going to get accomplished in this country with all the copyright insanity going on. Everyone is after everyone for copyright violations, IP theft, etc. It's F****NG madness.. Problem with this country is there are FAR too many lawyers, a useless lot.

A fundamental principle of copyright law is that copyright covers the expression of ideas but not the ideas themselves. This puts the essential elements of the trick—the concept of rose petals falling when the shadow is "cut" and the technical details of how this effect is accomplished—outside the bounds of copyright protection.

I don't understand. Wouldn't the technical details of how the effect is accomplished be precisely the "expression of ideas but not the ideas themselves" that would be protected by copyright?

I would have thought this too but surely suing over that would mean revealing the trick.

From the way I see it, this is an invention, not a work. Magic tricks are a process that produces an effect. Thus it's a patent not a copyright. As Teller did not file for a patent within 1 year of making the invention public, he's got no recourse. This should be tossed out. Just one more reason for me to not like those two idiots.

IANAL, YMMV, YADAYADAYADA.

At any rate, it also demonstrates the ridiculous not-so-limited (and thus by a strict read, unconstitutional) nature of copyright. If it were a patent, it would have expired 9 years ago. But, as a copyright, he gets it for life plus his heirs get it after that.

Not much is going to get accomplished in this country with all the copyright insanity going on. Everyone is after everyone for copyright violations, IP theft, etc. It's F****NG madness.. Problem with this country is there are FAR too many lawyers, a useless lot.

Nah, it's really patents that are hogging all the insanity. The only glaring problem with copyright are the perpetual extensions that never allow any copyrighted work to enter the public domain.

A fundamental principle of copyright law is that copyright covers the expression of ideas but not the ideas themselves. This puts the essential elements of the trick—the concept of rose petals falling when the shadow is "cut" and the technical details of how this effect is accomplished—outside the bounds of copyright protection.

I don't understand. Wouldn't the technical details of how the effect is accomplished be precisely the "expression of ideas but not the ideas themselves" that would be protected by copyright?

There's not much case law here so it's hard to say for sure. But (for example) if the secret was that there was a wire inside the rose that was pulled by someone off-stage, that's a functional idea rather than creative expression. What's potentially copyrightable is stuff like lines of dialog, stage directions, the exact shape of the flower, etc.

A fundamental principle of copyright law is that copyright covers the expression of ideas but not the ideas themselves. This puts the essential elements of the trick—the concept of rose petals falling when the shadow is "cut" and the technical details of how this effect is accomplished—outside the bounds of copyright protection.

I don't understand. Wouldn't the technical details of how the effect is accomplished be precisely the "expression of ideas but not the ideas themselves" that would be protected by copyright?

There's not much case law here so it's hard to say for sure. But (for example) if the secret was that there was a wire inside the rose that was pulled by someone off-stage, that's a functional idea rather than creative expression. What's potentially copyrightable is stuff like lines of dialog, stage directions, the exact shape of the flower, etc.

Exactly. That gets into patents and trade secrets. The idea that you can *copyright* a method for doing something is insane.

From the way I see it, this is an invention, not a work. Magic tricks are a process that produces an effect. Thus it's a patent not a copyright. As Teller did not file for a patent within 1 year of making the invention public, he's got no recourse. This should be tossed out.

Before you had an emotional bias towards this case because you don't like the plaintiffs. Why bother commenting if you're not going to look at this case in a critical manner? Filling a patent for a magic trick would require how the magic trick is done. Kinda defeats the purpose after that.

Good lord, I hope all ars followers never have to be income dependent on an invention.

Ironic that a magician that has spent his career showing the world how other magician's magic tricks are done doesn't want anyone else doing his trick.

I don't know that Teller is necessarily against someone else doing his trick. Knowing the way they usually operate, I'm guessing he's more pissed that some asshole is profiting from it. P&T willingly show how tricks are done with regularity (witness their cup & ball trick done with transparent cups). I think they lean more to the "information should be free" side than the "not yours" side.

Personally, I'm hoping this is just a stunt for part of a Bullshit! episode.

EscapeFromFog wrote:

Before you had an emotional bias towards this case because you don't like the plaintiffs. Why bother commenting if you're not going to look at this case in a critical manner? Filling a patent for a magic trick would require how the magic trick is done. Kinda defeats the purpose after that.

Good lord, I hope all ars followers never have to be income dependent on an invention.

Yes, patents are antithetical to a magician's illusions. That doesn't mean a magician's illusions are copyrightable.

How to do the trick would fall under trade secrets, but it's being argued that the expression of the trick on stage could fall within copyright, although this would theoretically have to be a different expression of the same trick. However, the idea-expression divide is a bit vague, and can be nudged quite a bit either way if you have enough money.

Ironic that a magician that has spent his career showing the world how other magician's magic tricks are done doesn't want anyone else doing his trick.

I don't know that Teller is necessarily against someone else doing his trick. Knowing the way they usually operate, I'm guessing he's more pissed that some asshole is profiting from it. P&T willingly show how tricks are done with regularity (witness their cup & ball trick done with transparent cups). I think they lean more to the "information should be free" side than the "not yours" side.

That copyright should only cover for-profit endeavors is a fairly common viewpoint, and being for-profit or not is often a significant factor in whether or not something is fair use. However, for-profit isn't something well defined, and what fits such a definition in regards to copyright often varies greatly depending upon who you ask.

Filling a patent for a magic trick would require how the magic trick is done. Kinda defeats the purpose after that.

What's your point? That he shouldn't file a patent for a magic trick? I agree wholeheartedly. But disclosure is not a flaw of the patent system; rather, it is the entire POINT of the patent system. You get a government-granted limited-time monopoly, society gets knowledge of all of the specifics of your invention. That the process does not lend itself to magic tricks is irrelevant.

Further, the idea that because patents don't lend themselves to magic tricks that he should be able to bend copyright law to fit his needs is ridiculous on its face. If the law does not work for you, it's probably because it was not intended to. If it really is some galactic oversight, the proper recourse is to petition the government for a redress of grievances (gosh, I'm sure I saw that in some document or another; I'm sure it wasn't an important one). In other words, change the law -- don't bastardize it.

Beyond that I think this case is utterly ridiculous and I hope the judge imposes sanctions for a frivolous lawsuit. I'm not holding my breath.

Ironic that a magician that has spent his career showing the world how other magician's magic tricks are done doesn't want anyone else doing his trick.

I don't know that Teller is necessarily against someone else doing his trick. Knowing the way they usually operate, I'm guessing he's more pissed that some asshole is profiting from it. P&T willingly show how tricks are done with regularity (witness their cup & ball trick done with transparent cups). I think they lean more to the "information should be free" side than the "not yours" side.

Yeah, sure.It's ok for them to profit but nobody else?.

If they came up with the trick and this whole copyright thing actually flies, then they will have the right of distribution. It will then be up to Teller to decide who profits and who doesn't from their work.

If they came up with the trick and this whole copyright thing actually flies, then they will have the right of distribution. It will then be up to Teller to decide who profits and who doesn't from their work.

Although I'm not too sure if magic trick is copyrightable...

It seems to me that the problem isn't that he's doing their trick, but that he is selling a kit & instructions on how to do it. Penn & Teller did a whole book on how to do some of their tricks: Penn and Teller's How to Play With Your Food, and sold a bunch of copies of it. Clearly copyrighted material, if somebody else sold a book How to Play With Penn and Teller's Food, they would be in violation of copyright.

The rub here is that the guy figured out on his own how to do it. It may or may not be the same method, but the end product, the performance, is identical or almost so. Is that copyrightable?

That copyright should only cover for-profit endeavors is a fairly common viewpoint, and being for-profit or not is often a significant factor in whether or not something is fair use. However, for-profit isn't something well defined, and what fits such a definition in regards to copyright often varies greatly depending upon who you ask.

Well unless he does free shows or post free web videos (?), it seems like profit to me.

The Dutch guy is kind of a prick for selling Teller's trick, but...that's show business. it happens ALL THE TIME. Teller knows this. Copyrighted magic tricks? Give me a fucking break.

My respect for Teller just dropped a whole bunch.

Yeah I kept reading though the whole article waiting for the part where he says.. and this is to prove a point that copyright needs ... blah blah blah. Didn't happen..... yet - still keeping my fingers crossed. This is the kind of ad absurdum that might prove a point to the judiciary that just seems to be waking up to the fact they are being used as a business model.

This case is more akin to someone selling a video about how to do your song than about the mechanics of the illusion. I'm sure that the video copies the movements and routine of Teller's act closely. It's not about the patent (though 1983? wow.) it's about the illusion as performance.

You don't see people selling "how to play this specific song, the way this guy wrote it and performed it" videos, do you?

As to Penn and Teller showing how certain 100+ year old illusions are done in their act, well, that's a bit different. In those, they'll even tell you during those bits that it's about the skill and artistry involved. Also, if you aren't aware, P&T did a show the last year in the UK called "Fool Us" which invited magicians on to perform and the shtick was that P&T had to guess how each was done. Even if they knew how the illusions were done, they still clearly had respect for the performance and routines of their contestants. Stage magic is an art.

I hold Teller in high regard as a performer, and this suit he's filled changes that not a bit.

Well unless he does free shows or post free web videos (?), it seems like profit to me.

You seem to have failed at reading comprehension. The argument given would say that if Bakardy showed how to do the trick via vidoes in a not-for-profit manner, it should be legal, and if he does the same in a for-profit manner, it should be illegal. Whether Teller does it for profit or not is irrelevant to whether or not he can get a copyright in the opinion of most of the people that only support copyright as a regulation of for-profit activities.

It's easier to see in more familiar terms. Those who have this viewpoint would say that sharing The Hurt Locker over bittorent should be legal, but selling 10000 bootleg copies for 5 bucks a pop in the streets of New York should be illegal. Thus, the problem with Bakardy wasn't that he copied the trick, but he attempted to make significant amount of money in doing so.

Well unless he does free shows or post free web videos (?), it seems like profit to me.

You seem to have failed at reading comprehension. The argument given would say that if Bakardy showed how to do the trick via vidoes in a not-for-profit manner, it should be legal, and if he does the same in a for-profit manner, it should be legal. Whether Teller does it for profit or not is irrelevant to whether or not he can get a copyright in the opinion of most of the people that only support copyright as a regulation of for-profit activities.

It's easier to see in more familiar terms. Those who have this viewpoint would say that sharing The Hurt Locker over bittorent should be legal, but selling 10000 bootleg copies for 5 bucks a pop in the streets of New York should be illegal. Thus, the problem with Bakardy wasn't that he copied the trick, but he attempted to make significant amount of money in doing so.

Actually you misunderstood me, I was referring to the fact of how he, Teller, reveals other people's tricks.Do you think he does that for "free"?.because those are not his to do for profit.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.